3.0 - Defining a Relevant Disability
Defining a Relevant Disability
For the purposes of this online resource, The Advocacy and Support Centre uses the term ‘disability' to refer to those persons the law may consider either mentally ill or intellectually impaired under the Mental Health Act 2000 (Qld) (the Act).
Although there are various competing ways of defining disability, the Act provides the statutory definition most relevant for the purposes of legal practitioners. Section 12, defines mental illness as a "condition characterised by a clinically significant disturbance of thought, mood, perception or memory". Within this definition the word clinically denotes that the diagnosis of mental illness is one that is primarily the responsibility of an authorised psychiatrist, and made according to internationally accepted standards. It is the role of a forensic psychiatrist to make a professional diagnosis and to provide an opinion in relation to the link that may have existed, if any, between the disability and the alleged offence.
From the outset, it is important that lawyers be aware that the existence of an intellectual disability, in and of itself, does not constitute a mental illness according to section 12(2)(h). However, the existence of an intellectual disability or an acquired brain injury (ABI) is relevant for the purposes of establishing fitness for trial and the possibility of a defence of unsoundness of mind or diminished responsibility.
ABI is a complex and individual disability. The brain can be damaged as a result of an accident, a stroke, alcohol or drug abuse, tumours, poisoning, infection and disease, near drowning, haemorrhage, AIDS, and a number of other disorders such as Parkinson's disease, Multiple Sclerosis, and Alzheimer's disease.
The terms ABI, head injury, and acquired brain damage, describes the types of brain damage which occur after birth. Lawyers should avoid confusing an ABI with an intellectual disability. Although those with a brain injury may have difficulty controlling, coordinating and communicating their thoughts and actions, they usually retain their intellectual abilities.
Diagnostic and Statistical Manual of Mental Disorders
The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM) is the most commonly used diagnostic tool by psychiatrists in Australia and Queensland. As a note of caution, the Manual's introduction asserts that in forensic contexts there is potential for the misuse of its diagnostic information, and, that additional information may be required in order to establish legal standards such as criminal responsibility. Therefore, the information herein provides a very basic overview of the general nature of these disorders merely for the lay practitioner's educative purposes.
Some common disabilities relevant to the functions of lawyers in a forensic context include, but are not limited to:
- Schizophrenia;
- Bipolar Affective Disorder (formerly manic depression);
- Clinical Depression;
- Intellectual Disability;
- Acquired Brain Injury (ABI); and
- Personality Disorders.
Treatment
The treatment of mental illness usually involves the implementation of social supports, psycho-social interventions and often includes the administration (whether voluntarily or involuntarily) of various medications including antipsychotic drugs in various dosages and frequencies. Depending upon the severity of symptoms and the person's capacity and willingness to consent, a person may be treated involuntarily in hospital, or alternatively, involuntraily in a community setting.
Since the 1960's Australia has seen progress in the policy of deinstitutionalisation. Thus, policy has moved from the perceived need for seclusion and restraint inherent in models of involuntary hospitalisation; to the more contemporary view that mentally ill persons are better off living and being treated in the community when accompanied by the use of a variety of antipsychotic drugs.
In Australia today, Community Treatment Orders (CTO's) acknowledge the capacity of a person to function in the community with the assistance of medication even where that person is otherwise considered dangerous.
In all cases, the aim of treatment should be to ameliorate the patient's symptom severity, and, to restore their cognitive and behavioural functioning according to the principles set out in sections 8 and 9 of the Mental Health Act 2000 (Qld).
